If this is your first visit, be sure to
check out the FAQ by clicking the
link above. You may have to register
before you can post: click the register link above to proceed. To start viewing messages,
select the forum that you want to visit from the selection below.

Hi Steve,
I recall the prosecutor having a very moving part to his close---He asked "If Danielle was here for one moment and we could ask her, "Who did this to you?" She would say---"I told you with my hair, I told you with my fingerprints, I told you with my blood". But I am merely a voice in a crowd. I cannot say one way or the other, but the forensic evidence of hair, fingerprints, and blood did it for me. Of course, we've shared our disagreement over the years. Should be some action if his appeal is viable soon. I wonder...

Comment

As I recall the prosecutor's close...he said if Danielle were here for a moment to answer who'd done this to her, she would say "I told you with my hair, my fingerprints, and my blood". That was the clincher for me. Oh yes and the orange fiber in her plastic necklace. But then, you and I have nagged this bone before. I wonder if he will be granted a new trial based on the material you've posted here?

Comment

As I recall the prosecutor's close...he said if Danielle were here for a moment to answer who'd done this to her, she would say "I told you with my hair, my fingerprints, and my blood". That was the clincher for me. Oh yes and the orange fiber in her plastic necklace.

snipped

During his closing arguments, Feldman said: “Danielle was speaking to you from the grave, she was. She was telling you there's a universe of fibers on me that don't apply to David -- David Westerfield. It's somebody else.”

So Dusek stole this idea and used it in his final closing arguments, in fact his very last words to the jury. So he used it to good effect. Cunning. Sneaky. I’m not happy about that.

Comment

As I have demonstrated, time and time again, there is overwhelming evidence of David Westerfield’s innocence. So why did the jury convict him?

I think the major reason is that they weren’t sequestered. They could never have arrived at a “guilty” verdict had it not been for the fear they must have felt, exposed as they were to the angry community, especially the crowd outside the courtroom (and even people inside the court building!) - they had to run that gauntlet every day. But what reasons did they give?

So I’m now going to examine the comments made by those jurors who gave interviews after their September 16 “guilty” verdict (see Chapter 15 of “Rush to Judgement”). They said it was because of the physical evidence: the blood (actually, just one drop and one small stain), fingerprints (actually, just one handprint), hairs and fibers, but especially the blood on the jacket. That is so superficial. Of course there was physical evidence of her in his environment: she had been in his house earlier that week, and his motor home had often been parked in the streets outside their houses. One can understand an ordinary member of the public, whose knowledge of the case was limited to some media reports, giving such a simplistic answer, but not the jurors. They knew about Locard transfer. They knew that nearly all the evidence of guilt presented by the prosecution had only been partly tested, so it might not actually have matched. They knew that the police dogs never alerted to her scent anywhere in his environment. They knew that no evidence was found of him in her house. And so on. If, as they claimed, they adopted a methodical approach, how could they have missed all that? One might have expected them to say that they struggled with all the problems with the evidence, and explain why they eventually decided on guilt anyway. Instead, they didn’t even acknowledge the many problems with the evidence. Did they even consider them?

Regarding Danielle’s blood on the jacket, a juror asked: “How did it get there?". It didn’t bother them that the police might have been able to answer this through a blood spatter examination, but failed to do so. And the real question should have been: WHEN did it get there? The fact that the search dogs didn’t alert to her scent anywhere in his environment is evidence that, if the stain was already there, then it couldn’t have been from the kidnapping, it must have been an old stain. And the fact that this stain wasn’t visible on the photo shown in court, is evidence that it wasn’t there when the jacket was seized by the police. The jurors apparently didn’t ask themselves these questions. (If the media had asked these questions, and done so repeatedly, then it would likely have made the public question his guilt, and moderated the anger towards him.)

Fingerprint examiners and the public (including even defense attorneys) treat this evidence as infallible. But examiners do make mistakes and evidence has been falsified. That’s in general. Also in general, the prints of family members are sometimes remarkably similar. And I have concerns about the reliability of matches made using rehydrated skin and on unusual parts of the fingers (as happened in this case) - even though Westerfield’s defense didn’t raise those concerns during the trial. More particularly, although there were many prints in his motor home (which gives the lie to the prosecution’s claim that he cleaned like a dervish), the criminalists stopped lifting prints after only the fifth one, and then took two lifts of it. Why? Why did they treat it differently to the other prints and especially why did they stop lifting prints at that point? It was as if they knew this was her print and that none of the other prints were hers. How could they have known that? Increasing my suspicions, based on the dates given by the fingerprint examiner, he started comparing that print with her actual fingers one week before her body was found. Which is obviously impossible.

Even if my fears are unfounded, and that really was Danielle’s handprint, it could easily have got there innocently. His motor home was often parked in the streets very close to her house, it was sometimes (probably often) unlocked, and she often walked right past it. And the dog scent evidence proved that she hadn’t been in it recently. Why didn’t the police just ask her brothers if she had ever been in that vehicle? Were they afraid that the answer might have been “yes”? That would have caused the case against him to collapse. Why did the jurors give the police and prosecution a free pass on this failure?

Comment

They said the issues raised by the defense had little or no impact on them.

They dismissed the entomology evidence, which has been described as the defense’s strongest argument for acquittal, giving several reasons:
a) Too subjective. Yet all three experts for the defense gave dates centering around the middle of February, and the prosecution entomologist gave a date only slightly earlier. Faulkner (the only entomologist the jurors trusted) gave a narrow range because he was giving the most likely date; Haskell and Hall gave much wider ranges because they were being more conservative (yet the jurors thought them untrustworthy) and gave the likely duration of the entire third stage of development. They trusted Faulkner because he had been called in by the police (which suggests a bias in favor of law enforcement, casting doubt on the objectivity of their verdict), so the fact that the prosecution failed to use him as their expert witness should have been a big red flag.

b) Faulkner gave the latest date. That’s not true: it’s based on a misunderstanding or taking a statement out of context (see pages 426-429 of “Rush to Judgement”). He gave a range of dates. Exposure of the body to the insects did not occur after those dates - so yes, he gave the latest date, but nor did it occur before those dates - so he also gave the earliest date.
c) The entomologists (apart from Faulkner) were “hired guns”. These weren’t mavericks with far-out ideas. They are mainstream scientists who most often work for the prosecution and even teach the police. Take Goff, the prosecution’s witness. He did various sets of calculations, based on different development temperatures and weather stations, which mostly gave impossibly early dates, but then chose the set which gave the most reliable and appropriate date, and this set gave a date which excluded that first weekend and therefore exonerated Westerfield. (There are many problems with his calculations - see Chapters 13.3.3 and 13.3.4 of “Rush to Judgement”.) So he did his job well as a “hired gun” for the prosecution, by raising doubts about the time of Danielle’s death; but then remained true to his duty as a scientist by giving the date which his science told him it was. Very clever.

The bottom line is that the prosecution expert agreed with the defense experts: it couldn’t have been Westerfield. But the jurors, probably none of whom had relevant knowledge, decided that Danielle's body could have been outside longer than even Faulkner found. And he gave the latest earliest date (his earliest date was the latest of all four experts). So the only one they trusted as honest had to be VERY wrong. And they thought ALL these experts were wrong. That is difficult to accept.

The forensic anthropologist also gave an estimate for her time of death, but his dates were impossibly early - they were before she even disappeared. But he lacked relevant expertise - estimating the postmortem interval of the recently deceased - so he shouldn’t even have been asked for his opinion. But the prosecution needed him to win a case which, based on the evidence, they should have lost.

Next, the drug use of the parents and their friends. They apparently only used marijuana, but they lied about it to the police - when their daughter was missing. And marijuana was illegal. As they were doing one illegal thing, it might have been easier for them to do something else illegal. As they were willing to lie to the police, maybe they would have lied in court (perjury). And I would combine the marijuana with the alcohol. They were high on both that night, so their inhibitions - of all six of those adults who were present that night - would have been lowered, and they might have done something bad. Or allowed something bad to happen through negligence. It was short-sighted of the jurors to just brush this aside.

Finally, their “lifestyle”, which the jurors thought irrelevant. The only child in that neighborhood who was kidnapped and murdered, was the daughter of the only known swingers in that neighborhood. Coincidence? They indulged in unusual, and what could be described as extreme, sexual behavior. They even invited strangers at the bar back home for sex. And this was supposedly a sexual crime. So how could this be so easily dismissed? It might be an exaggeration to say that Danielle was surrounded by sex fiends, but it can hardly be “silly” to be concerned at this situation. Surely it posed dangers to the children. And we can’t look at their sexual activities in isolation, it has to be considered in conjunction with their alcohol consumption and illegal marijuana smoking. We don’t know how thoroughly the police investigated this. Because they had already decided Westerfield was the perpetrator (after which they had tunnel vision), and the judge only allowed limited questioning on the subject.

Continued ...

Comment

One juror said the child pornography had given him an insight into motive. So that evidence played an important role in the “guilty” verdict. But if any of his porn was clearly genuine child porn, then he would have been arrested Monday night, as that’s when they discovered it (and he would have been charged under a child porn statute). And other members of law enforcement also said it wasn’t child porn (see page 316 of “Rush to Judgement”). But the judge wouldn’t allow that testimony, which seems grossly unfair given the emotional reaction to those images. But the prosecution needed to claim child porn to ensure a “guilty” verdict. A few of the images were nasty, violent. But the failure of the police to investigate what appeared to be serious crimes, supports the defense suggestion that it was just actors who were paid for their performance. If the victim in a trial had been a man - an adult male - and the defendant possessed a movie including a murder - maybe the famous Western, “High Noon” - I seriously doubt the prosecution would have attempted to introduce that into evidence. But with the victim being a child - a little girl - and with sex added to the mix, the prosecution had a winning formula. Guilt by accusation. You need only read the media reports of the time to see how emotionally parents reacted to just Danielle’s disappearance.

In addition, it’s really difficult to believe that a few “questionable” images (small in number and small in proportion to the total), mostly old, seldom viewed, not recently viewed, of girls much older than Danielle, could be seen as a motive. That evidence is so weak, and its prejudicial impact so great, that it far outweighs its probative value.

They also took into account his niece’s claim that, one night, when she was 7, he rubbed her teeth while she was asleep in his daughter’s room: the jury foreman thought “there was something there”. That was 12 years earlier, and there was no supporting evidence, in fact it’s unlikely to be true (see pages 94-96 of “Rush to Judgement”). And there’s a huge difference between rubbing teeth and murder. It’s frightening that a story which, even if true, was so long ago, was probably irrelevant and shouldn’t have been admitted, but nevertheless played a role in the death verdict, and may even have tipped the scales.

The prosecution believed that he had these few images for prurient interest. But there’s another explanation. He was conducting his own investigation to determine what was available for free on the internet. So he was like the police, who have many more genuine child porn images. If his motive had really been prurient interest, then he would have had many more such images, and they would have been of genuine child porn. It’s not even certain these particular ones were his images - he wasn’t the only one who used those computers. Taking all this into account, I would even go so far as to say it was dishonest to use those images in order to obtain a “guilty” verdict. It’s “win at all costs”.

As pornographic and even just partially nude images were used as evidence against him, and played a role in the jury’s verdicts, the question arises: were there any such images on the van Dams’ computer? That is relevant as they are likely suspects. And the answer is “Yes”. We know they had a video of Danielle’s first bath. So they likely had more such images. It will doubtless be argued that those are innocent images, but his ordinary family photos of a teenage girl sunbathing in her bikini were claimed in court to be child porn, so it’s likely that someone with a similarly suspicious mind could see child porn in whatever images the van Dams had. But the judge wouldn’t even allow the defense to ask if they had images of naked 20-year-olds (and warned the jury to ignore that question). If they didn’t have, then no harm would have been done to the prosecution case. In fact, it would have gone to allay any suspicions of their guilt. So why not allow the question? But if they did have any such images, then the jury might well have started wondering if they were wrong in focusing exclusively on Westerfield. (See Chapter 12.5 of “Rush to Judgement”.)

Continued ...

Comment

One juror said he was looking for one piece that just didn't fit. One piece? The foreman said they tried to fathom what exactly happened, but they didn’t necessarily have to fill in all the gaps of the story, and whether he sneaked into the van Dams' home, but it wasn’t really an important topic in terms of the ultimate verdict. That implies they believed there were many gaps, they weren’t even sure he had been inside her home, which was the prosecution argument! So it wasn’t just one piece that didn’t fit, the entire story didn’t make sense. That’s what they were admitting. But they didn’t care: they said they just needed to place her in his environment. But we know she was in his environment, we’ve known that since Day 1! What they needed to do was to place him in her environment, and they couldn’t. And they weren’t overly concerned at the lack of such evidence. That is one huge gap in the prosecution case. Surely that fact alone provides reasonable doubt. Some crimes might not leave evidence of the perpetrator at the scene, but he was supposedly in her home for an hour.

One doesn’t necessarily expect detailed answers in a press interview, unless the reporters ask more detailed questions (which they hadn’t done in the preceding months, and these reporters probably believed him guilty), but there’s nothing in their comments which suggests they did a thorough examination of the evidence. Worse, the foreman was quoted as referring to the “spots of Danielle's blood that were found on Westerfield's jacket two days after she disappeared”. Only one spot of her blood was found on his jacket, and it wasn’t found two days after she disappeared, even his jacket itself was only seized five days after her disappearance. This makes one wonder how good their knowledge was of the most basic facts of the case.

The jurors also commented that he showed no remorse. This raises the perennial problem: how should an innocent person respond?

Finally, the jurors said they voted for death because “they found the way Danielle died much more compelling than any of the positive aspects of Westerfield's life”. But we don’t know how she died: the cause of death was never established. We also don’t know where she died. We don’t know when she died. We don’t know why she died. As admitted by the prosecutor. One published claim was that she died in her sleep in her own bed - but the judge wouldn’t allow the defense time to investigate that.

CONCLUSION

One of the jurors said he went into the trial wanting to find Westerfield innocent. I see no evidence of that in their comments. On the contrary, they appeared to have a bias in favor of law enforcement. Their comments were so superficial. They seem to have uncritically accepted as true everything the prosecution presented, and rejected everything the defense presented, for weak or invalid reasons. Did they even consider the many and serious problems with the evidence presented by the prosecution? They were too trusting of what the parents said. And too influenced by the computer porn (which was probably the prosecution’s strategy). It’s astonishing and deeply disturbing that they were untroubled by the fact they couldn’t figure out how the crime could have been carried out, and apparently didn’t really believe the prosecution’s scenario. Worse, even though they didn’t say much, they didn’t get all the facts right. When the judge said he thought they’d put half the country to sleep, that must have included the jurors.

One alternate juror said that, although she had a college education, she didn’t understand a word of the jury instructions. Judging by the jurors’ comments, they didn’t understand a word of the entomology evidence.

I recently watched an old episode of “Divorce Court” with Judge Lynn Toler. It featured a young couple with distinct similarities to the van Dams. They had two small children. The wife liked alcohol, the husband liked marijuana, and he invited strangers home for the marijuana. The Judge warned them strongly to stop doing that. She had more wisdom than the jurors in this case.

Comment

I have given ample evidence that Westerfield is innocent, so why did the jury convict him? I’ve examined the reasons they gave, and these are superficial, they apparently accepted without question the prosecution’s evidence (despite serious problems with it), and rejected all the defense evidence (with weak or invalid reasons).

Why would they do that? I’ve already said I think it’s because they were afraid of the angry community should their verdict be “not guilty”. So they took the safe way out, and rationalized it. Of course, it’s not quite as simple as that.

Starting at the beginning, I’ve already explained my conclusion that it was the polygraph operator’s belief that Westerfield’s weekend trip was crazy that resulted in his “failed” polygraph, which in turn convinced the police of his guilt. However, in 2017 we learned that one of the detectives credited herself with solving the case single-handedly. How? Because she was convinced his uncoiled garden hose was proof of his guilt (page 248 of “Rush to Judgement”), and she then persuaded the other detectives of this. Her arguments aren’t supported by trial testimony. Nevertheless, this reinforces my belief that the detectives in that police department were grossly over-influenced by weak evidence, their “gut feeling” causing them to jump to conclusions which weren’t supported by the evidence. The DA’s story that Westerfield wanted a plea deal only became public knowledge after the verdict, but it might have been known amongst the police early on, and might have influenced those police involved in the case.

So the police were now convinced he was guilty. And they in turn convinced the media of his guilt - aided by leaks which are believed to have come from the then DA. (The media is discussed in Chapter 6 of “Rush to Judgement”, pages 236-247.) So media reports on the case, whether wilfully or not, portrayed him as guilty, without raising any questions. Such as the leaked failed lie detector test; that his DNA was found in her room (page 244 of “Rush to Judgement”); that he had child porn; that his weekend trip was suspicious (page 241). They published the police’s claim, which was false, that there was so much bleach in the motor home (implying a big cleanup) that it severely affected the search dogs' ability to smell for a body scent (page 193). That was contradicted by testimony, but only after people had decided he was guilty.

That unquestioning “guilty” reporting began almost immediately, and has continued to this day. So the jury pool was exposed to it for months before the jurors were selected, and it must have affected them, making it difficult for them to believe otherwise (page 239). And giving Westerfield’s defense a difficult task. The jurors might have shielded themselves from the media once they were selected, but the public remained exposed, and it convinced many of them of his guilt, resulting in the angry community both inside and outside the court. So it’s not too surprising that his lead attorney received death threats (page 466). Did that adversely affect the attorneys’ defense of their client? A radio host who exposed the van Dams’ lifestyle also received such threats (page 25).

Even if the jurors successfully avoided media coverage of the case, they couldn’t escape the case as it was everywhere. One of the criminalists, during a trip to Las Vegas, saw Court TV reruns of herself on the stand while running on a hotel treadmill. The judge reported that, when he flew into Reno or Las Vegas, the baggage handlers knew who he was. The case was mentioned (twice) by Governor Gray Davis (pages 63 and 236). Even President George W. Bush mentioned it (page 236). Perhaps none of the jurors traveled to those more distant places, but it was far worse for them in San Diego. The same criminalist said she was recognized at restaurants and supermarkets. And she would go to a restaurant and a flier with Danielle's photo would be in the window; she would be driving somewhere and several cars would pass her with the fliers taped to them; everywhere she went, every place in the county from the South Bay all the way up to North County, Danielle’s image was right there. The jurors would have had the same experience. That is similar to the button pins showing Danielle’s picture, which the Judge told van Dam supporters not to wear in court, nor to distribute them in the hall where jurors might pass, describing them as a form of intimidation which he would not tolerate (page 462).

All this made the defense’s task even more difficult.

Taking all the above into account, sequestration was amply justified. But the Appellant’s Opening Brief argues extensively and persuasively for sequestration so, rather than devoting more time to that, I’ll give some other likely reasons for the jury’s illogical verdict.

Continued ...

Comment

During the trial, the jurors appeared emotionally affected by several things: Brenda’s 911 call (page 466), the autopsy photos (page 464), the computer porn (page 313). They were also upset by their visit to his motor home, which the prosecution had staged as a crime scene (page 313), even though it wasn’t definitely a crime scene, yet the judge wouldn’t even allow the defense to just access to the van Dam home (page 215), which was definitely a crime scene. (The prosecutor also said they were unwilling and unable to “force” entry to the van Dams’ home by the defense (pages 217/8). That was in response to the van Dams’ unwillingness to allow them entry. Is it really true that likely suspects can restrict the defendant’s right to prove his innocence in this way?) The jurors were apparently also upset by the prosecutor banging on the jury rail to simulate Westerfield banging Danielle’s head on the motor home headboard, yet there was no injury or damage to indicate that had happened (page 298). All this raises the question as to whether their emotions got the better of them (which was one detective’s excuse for attempting to violate Westerfield’s constitutional rights), and if this clouded their judgement affecting their verdict. Quoting Dr Michael Baden’s comment on the Jeanine Nicarico case: “When the passions of the community and the district attorney and the prosecutor are so raised in a case, one can get a false verdict” (page 456).

Although his attorneys put on a vigorous defense, I think they could have done a much better job (pages 468/9). Taking a few examples. In closing arguments, the lead defense attorney held up a poster listing the evidence of Westerfield in the van Dam residence: it was BLANK! (page 508). That should have had an impact on the jurors. But it would have had more impact had he strung it out, mentioning individually the absence of his blood, hair, fingerprints, carpet fibers, clothing fibers, scent, etc. And he could have strung it out even more by saying there were no Westerfield fingerprints on the side gate, on the side garage door, on the house garage door, on the stair rails, on Danielle’s door, anywhere in her room, on the sliding glass door, or its blinds and screen. And none of his hairs on her bed, in her bedroom, or elsewhere in her home. The attorney mentioned third party evidence in the van Dam house and at the recovery site, but not that the unknown blood in her room wasn’t run through CODIS nor the unknown fingerprints in her home through IAFIS - nor the unknown hair under her body through CODIS. He pointed out that most of the fibers in Westerfield’s environment which were claimed to match in fact weren’t tested, and the remainder may or may not have come from a common source. But he could have added that most of those which were tested were only partly tested, and further testing may have shown that they didn’t match. In fact, perhaps only one of the fibers - an orange one - might have been subjected to and passed all their tests, and even that was visually different - dull orange compared to bright. Regarding the van Dam hairs in Westerfield’s environment, he pointed out that the presence of roots didn’t mean violence had been used, and the dog hairs proved Locard. He also mentioned the normal shedding rate, implying (correctly) that the number of her hairs wasn’t suspiciously high, but overstated the rate, so the prosecutor seized on that mistake and then exaggerated the effect (pages 283/4). And he could have added that the evidence presented didn’t specify if the hairs had cut or split ends (page 286), nor exactly where on his bedding those ones were found (pages 285/6), which could have proved innocence, nor that the changing color of her hair also had evidentiary value (pages 283, 497). He pointed to the police’s failure to examine the blood evidence for spatter, their failure to even photograph the one stain, and that the other stain couldn’t be seen on the photo of the jacket. But he could have also pointed out that there was no Danielle blood on the bed sheets, which is where the first assault would have taken place. Nor did he mention that, although kidnapped in her pajamas, no pajama fibers were found in his environment.

Given the uphill task the defense had (as pointed out above), and how much effort those attorneys put into their task, I would hesitate to accuse them of being ineffective, but they did lose a case in which the evidence was on their side, and there were a lot of points they missed, which could have resulted a very different verdict.

Comment

The Respondent’s Brief (Robin Urbanski, Deputy Attorney General) characterizes Westerfield’s travels to the Silver Strand, Glamis, Borrego Springs, the Silver Strand and back home, in the span of just two days, as suspicious (page 45).

Most weekends are just two days, so you have to fit everything you want to do into those two days. Coincidentally, his motivation for part of the route he took was to find a suitable destination for a planned trip with his son for the long weekend which was coming up.

This reminds me of criticism of tours of Europe: “if it’s Tuesday, this must be Belgium” -“humorously illustrating the whirlwind nature of European tour schedules” (Wikipedia). Coincidentally, I’ve just been reading a letter from a New Zealander in a Scottish magazine, in which the writer refers to her bus tour of Europe which visited seven countries in just 16 days.

Contrast Westerfield’s travels that weekend with Brenda’s the previous day. On the Friday afternoon, just hours before Danielle went missing, Brenda went in quick succession to: Creekside Elementary School (neither her children nor the school were expecting her), Motophoto (for passport photos), Staples, the Post Office, Mervyn's (leaving her two small sons unattended), Toy Depot (leaving little Danielle unattended), back to Mervyn’s, and then back home - so a journey of no fewer than eight legs in just 3 hours (pages 113/4 of “Rush to Judgement”). And that wasn’t the end of it. She then went to Domino’s (again leaving her three small children unattended), then back home, then apparently to the new neighbors for the first time (did the police investigate them?), then back home, and then with her two girlfriends for that now infamous “girls’ night out” at Dad’s. Can that be considered innocent in the light of what happened just an hour after they returned home from Dad’s?

(Chapter 20.2 of “Rush to Judgement” shows how easy it is to make Damon, Brenda, and their four friends look guilty. And those arguments could instead have been the ones Urbanski would now be using against them, had Redden not thought Westerfield’s trip was crazy.)

Responding briefly to Urbanski’s description of his trip on page 45:

“Driving from his home, to where his motor home was stored, back to his home”
That’s what he normally did, and it’s not far.

“to the Silver Strand in Coronado, to Glamis near the Arizona border”
The Silver Strand wasn’t originally intended, and was only because his wallet had slid under the seat of his car so he overlooked it.

“to Borrego Springs”
He wanted to use his normal route back (and he didn’t actually go into Borrego Springs).

“the Silver Strand”
He generally liked it there, and had already paid for that night, so why not?

“and then back to his home”
That’s only logical.
And responding briefly to Sergeant Holmes’ account of the Monday evening briefing, quoted on page 51 of that Brief:

“The Silver Strand trip where he went down there originally going to the desert,”
He didn’t originally go to the desert and then to the Silver Strand - two trips to the distant desert in a weekend would have been excessive. But perhaps Holmes meant “originally intending going to the desert”.

“then the Silver Strand, then he left the Strand because it was cold,”
That seems a sensible reason for leaving.

“and drove back home to the desert,”
His home wasn’t in the desert!

“all that didn't seem to make a lot of sense”
Agreed - IF that’s what he did, but it’s NOT what he did.

That is what Holmes was told at the briefing.

It therefore seems that neither Holmes - nor anyone else at the briefing? - knew WHAT Westerfield had done, let alone WHY he did what he did (nor even Urbanski!), so how can they say his behavior was suspicious? How can THEIR unfounded suspicions be a valid basis for dismissing Westerfield’s appeal and ultimately for executing him?

Comment

The question of “good faith” is raised several times in the exchange of Briefs. But what exactly does that mean?

Is it required that the person be impartial and objective, giving arguments pointing to innocence as well as guilt? Or, if he believes the suspect guilty, is he allowed to select only what he considers suspicious behavior? Surely the latter is what normally happens - and did happen in this case. Do his sources also have to be acting in good faith? Otherwise people who were ignorant or biased could feed him with incorrect information, but he would trust the information from his fellow officers, so he himself would still be acting in good faith despite providing biased and incorrect information.

Putting it another way. Is it necessary for the Affiant to personally believe that all the information in his Affidavit is correct? Or is it sufficient for him to merely believe the suspect guilty, even if he doesn’t believe that all the individual statements are correct? (The end justifies the means.) What if he merely suspects some aren’t correct? Or that they are exaggerated? Perhaps because the people who supplied the information have a habit of exaggerating. Or he has other information which casts doubt on what he has been told. Or he himself doubts the evidence is sufficient. Suppose he trusts the informants but they aren’t reliable?

That’s in general. Let’s now take Detective Alldredge’s Affidavit for the first Search Warrant. As I have pointed out before, it is riddled with errors (see the thread “Search Warrant and Affidavit errors”, on 12/7/2012). One would think that it was therefore invalid. But that argument has been rejected, on the basis that he presented that information in good faith (page 96 of the Opening Brief).

It can also be argued that many of those errors are minor, notably spelling and grammar, maybe even the incorrect names, dates and times. Less innocent is incorrect information such as Westerfield was several years older than was stated, he didn’t approach Brenda at the bar, and he arrived back home before the police were there. Those “small” errors make guilt appear more likely, and must have a cumulative effect. And if the police had just waited a little, and done some more investigation, they’d have discovered that some of their suspicions were unfounded - such as his uncoiled garden hose (third post of the abovementioned thread). It is also not obvious from the Affidavit that he was with the police almost continuously from about 8:45 a.m. on the Monday, and it is not surprising if he made some slips - such as that “we” (fourth post of the abovementioned thread) - during those many hours of interviews and interrogation.

All in all, this indicates how little care and effort was put into the Affidavit by the police. Which is worrying, it makes you wonder. It is easy to conclude that they were acting in haste, driven by their “gut feeling”, a knee-jerk reaction. So they were being reckless. And if they couldn’t get those “small” details right, then you can’t trust them in bigger matters. I am reminded of a passage in the Bible: “If you are faithful in little things, you will be faithful in large ones. But if you are dishonest in little things, you won’t be honest with greater responsibilities.” (Luke 16:10, New Living Translation).

The Affiant, in his Affidavit for Search Warrant 27863 (February 22, 2002), declares that he had “substantial probable cause”. There is no such statement in the original Affidavit (27818) above. The DDA merely asked the Judge “that a search warrant be issued based on probable cause”. That could be a clever way to hide the fact that he and the Affiant knew they lacked probable cause.

The Affiant (for Warrant 27818) swore, under penalty of perjury, that the statements he was about to give were the truth, the whole truth, and nothing but the truth, to the best of his knowledge. The “whole” truth? He didn’t mention that Westerfield didn’t have a criminal record. And had lived in that house for several years without arousing suspicion. He said a lot about Brenda, but didn’t say that she and her husband and their friends that night were inebriated and high on marijuana, or mention their sexual lifestyle and behavior at the bar, all factors which might have affected both their behavior back at home and their memory of the events, making them not only unreliable witnesses but also likely suspects (especially as Damon was the last person to see her, Brenda reported her missing, and all of them were present during the crime). Especially as he (the Affiant) withheld the fact that they initially lied about their activities. Which would surely have been a big red flag to the Judge, resulting in the Search Warrant being denied. By no stretch of the imagination can that be described as the “whole” truth.

So I would argue that the omission of those facts was intended to mislead the Judge, and was so serious that there was no “good faith” on the part of the Affiant.

Putting it another way. The trial court may have concluded that no false statements or statements with reckless disregard for the truth had been made in seeking the warrant (page 48 of Respondent’s Brief). But what about statements which had been wilfully omitted? I would call that omission a “reckless disregard for the truth”.

I recently saw an article about a defamation lawsuit filed against CBS by JonBenet Ramsey’s brother, which stated: "The accusation that Burke Ramsey killed his sister was based on a compilation of lies, half-truths, manufactured information and the intentional omission and avoidance of truthful information about the murder of JonBenet Ramsey" (Mariah Haas, Fox News, January 4). Based on all the above information, you could say much the same of Affidavit 27818 - and the entire case. That quote could serve as a guide to what “good faith” should be: Affidavit 27818 failed that test.

The Affiant stated (on the third page) that he obtained his knowledge by talking with police officers, by reading official reports, and by being personally involved in the investigation. There couldn’t have been that many official reports at that very early stage, so most of his information was verbal, with no supporting documentation. So it couldn’t easily be checked. Which opens the door for mistakes, misunderstandings, mere suspicions, exaggerations - it’s wide open to abuse.

How many search warrants obtained so hastily, based on such flimsy evidence, failed to result in convictions? If a lot, then that supports my fears. They found so little evidence against Westerfield, so few of the items they were looking for (e.g. her earrings and necklace, and no items were produced relating to juvenile abduction), that they had to rely on stirring up emotion during the trial in order to obtain a conviction (see posts 922 and 925 of the “Appeal stuff” thread).

Comment

I have previously argued that it was his “failed” polygraph which convinced the police of his guilt (posts 911 on the 5th of January, and 912 on the 8th). Could it have been something else?

The crucial time is the Monday afternoon and evening of February 4. Prior to about 2 to 3 p.m., he was not a suspect - as evidenced by the fact that he wasn’t followed after either the walkthrough of his motor home or the dog search of his home. But after his interview-interrogation-polygraph test, he was very definitely a suspect - as evidenced by the fact that he was followed when he left the police station and they were already trying to get a search warrant.

I can think of only two things which happened during that time, other than the polygraph: the phone calls to the FBI profilers and to Brenda.

We can discount the telephonic discussion with the profilers as their opinion was that the perpetrator was someone who was familiar with the interior of the van Dams’ house, and he wasn’t. But the police then stretched that opinion, arguing that his house was similar, though it wasn’t really: their house was bigger and had a different layout (page 34 of “Rush to Judgement”). So the questions are: why did they stretch that opinion, and when did they do so - before or after the “failed” polygraph?

We can also discount the phone call to Brenda. Although she said she hadn’t told him about the upcoming father-daughter dance, implying he must have got that information from a kidnapped Danielle, she had proved herself untrustworthy, and was herself a likely suspect, so that might have been a self-serving claim to deflect attention away from herself. So why would they have believed her? Because she had friends in the police? Were any of the police swingers?

Turning now to the Briefs. Quoting from page 99 of the Appellant’s Opening Brief:

Defense attorney questioning polygraph operator:
Q. And if he would have passed the test, that would have been the end of it, correct?
A. That would have been the end of it.

So a pass would have eliminated him as a suspect, just as all the much more likely suspects (the parents and their friends) had been eliminated as suspects. This is clear evidence that the polygraph operator and the police had far too much faith in polygraphs.

And quoting from page 69 of that Opening Brief: “Judge Bashant's only questions were in regard to the polygraph test” (that was regarding the Affidavit for the first Search Warrant, 27818). This implies that she also had far too much faith in polygraphs.

The Respondent had much to say about the polygraph test in her Brief, but failed to address those two specific points.

Even if polygraph results can in general be used to obtain a search warrant, it should NOT have been done in this case because of a combination of three reasons: the blind faith in polygraphs of those specific police officers; the danger that this would result in the most extreme punishment, the death penalty - as in fact has happened; and the frightened, angry community in this high-profile case meant extreme pressure on the police to arrest someone. Add those three together and you’ve got a recipe for hasty, impulsive, ill-considered and unjustified action.

Comment

I wonder if he appeals to the US Supreme Court? Of course, he is unlikely to face death by the hand of the State of California unless he lives a long time. The state has not executed someone sine around 2006. There was a blind, elderly person--I recall..I do not want state mandated death for anyone. Ever. I am sure this was not good news for Westerfield. I still do believe his conviction was appropriate and his guilt proven.